US v. Charles Ellis

Filing 920081126

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5117

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES ELLIS, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg. Joseph R. Goodwin, Chief District Judge. (6:06-cr-00037-1)

Submitted:

November 12, 2008

Decided:

November 26, 2008

Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Steven I. Loew, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Charles sentence imposed Ellis for appeals his convictions purchases and of 324-month firearms

conducting

straw

through four women in the Parkersburg, West Virginia, area so he could resell the firearms for profit in Boston. convicted of tampering with two of the witnesses. He was also On appeal,

Ellis argues that his right to a fair trial was violated by improper testimony and a remark by the prosecutor in closing statements. He also contends that his sentence is unreasonable.

Finding no error, we affirm. Ellis did not make any contemporaneous objections to any of the evidentiary errors alleged on appeal. errors are subject to plain error review. Olano, 507 U.S. 725, 731-33 (1993). Therefore, the

United States v.

Four conditions must be met

before this court will notice plain error: (1) there must be error; (2) it must be plain under current law; (3) it must affect substantial rights, typically meaning the defendant is prejudiced by the error in that it affected the outcome of the proceedings; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. 732-37. Ellis first argues that the testimony of Agent Michael Turner that five guns were found at crime scenes and calling the guns "crime guns" was highly 2 prejudicial, inflammatory, and Id. at

unnecessarily Ellis contends

tied that

him

to

at

least to

four a

unspecified character

crimes. and The

this

amounted

attack

deprived him of his Fifth Amendment right to a fair trial.

Government maintains that the straw purchases and resales in Boston were criminal acts, making the firearms "crime guns," and further that, because at least four firearms were recovered from crime scenes, they were in fact accurately characterized as

crime guns. We conclude that it was not error for Agent Turner to refer guns." to the firearms recovered from crime sites as "crime

Ellis does not contest that the firearms were recovered

from crime scenes and there was no testimony that Ellis was involved associated particularly in any overt the acts related Therefore to the crimes is the no later error,

with one

guns.

there

which

"seriously

affects

fairness, United

integrity or public reputation of judicial proceedings." States v. Brewer, 1 F.3d 1430, 1435 (4th Cir. 1993). Next, Ellis contends that the testimony of

Delano

Gaskins, a former inmate with Ellis, that he decided not to traffic in guns with Ellis because he had "changed around by the grace of God" was unduly prejudicial and improperly used to

bolster the credibility of this Government witness who was a convicted felon. Ellis seeks a new trial to cure the

3

misconduct.

The Government replies that any error is harmless,

if any error resulted at all. A prosecutor may neither vouch for nor bolster the testimony of a Government witness in arguments to the jury.

United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). Vouching personal generally belief in occurs the when the prosecutor of a indicates a

credibility

witness.

United "While

States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993).

improper vouching must generally come from the prosecutor's own mouth, a prosecutor's from solicitation of assertions may also of be

trustworthiness

government

witnesses

impermissible vouching."

Id. (citing United States v. Piva, 870

F.2d 753, 760 (1st Cir. 1989)). Impermissible vouching and bolstering do not

necessarily mandate retrial, however.

Instead, "[t]he relevant

question is whether the prosecutor['s] comments so infected the trial with unfairness as to make the resulting conviction a

denial of due process." quotation marks omitted).

Sanchez, 118 F.3d at 198 (internal In making this determination, we

examine "(1) the degree to which the comments could have misled the jury; (2) whether the comments were isolated or extensive; (3) the strength of proof of guilt absent the inappropriate

comments; and (4) whether the comments were deliberately made to divert the jury's attention." Id. 4

The Gaskins

Assistant he

United to

States

Attorney

(AUSA)

asked he

whether

agreed

Ellis's

suggestion

that

illegally sell guns.

Gaskins simply replied, "[n]o."

The AUSA

then asked, "[w]hy not?" answer.

The Government did not linger over his

Nor did the AUSA refer to the answer in his closing The testimony does not implicate impermissible

statement.

bolstering requiring remand.

The remark was isolated, did not

mislead the jury as to relevant facts, was slight compared to the rest of the evidence, and does not appear to have been deliberately elicited to divert the jury's attention from

Gaskins' status as a felon.

See Sanchez, 118 F.3d at 198.

Therefore there was no error, plain or otherwise. During closing, the AUSA stated that the women who purchased firearms had not purchased firearms since the straw purchases--a fact not in the record. Ellis contends that this Although it was a

was testifying to facts not in evidence.

short statement, Ellis argues it was a broad assertion, which tended to mislead the jury. was no contemporaneous the fundamental Ellis states that, although there made of to the the trial comment, because it it

objection fairness

affected

involved the five strongest witnesses against him. A infect[] the prosecutor's trial with improper unfairness closing as to argument make the may "so

resulting

conviction a denial of due process." 5

United States v. Wilson,

135 F.3d 291, 297 (4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)) (internal quotation marks omitted). In determining whether a defendant's due process rights were violated by a prosecutor's closing argument, this court

considers whether the remarks were, in fact, improper, and, if so, whether the improper remarks so prejudiced the defendant's substantial rights that the defendant was denied a fair trial. Id. We conclude that even if the AUSA's isolated remark was improper, it did not so prejudice Ellis's substantial rights as to deny him a fair trial. Although the remark was about

facts not in evidence and involved the witnesses who purchased firearms for Ellis, it did not address a crucial element of the charges unsupported by other evidence. Considering the isolated

remark and the totality of the evidence as a whole, the remark was not unduly prejudicial. Finally, Ellis argues that together the crime guns

testimony, Gaskins' testimony, and the AUSA's allegedly improper remark in closing resulted in cumulative error that would

require a new trial.

However, no error resulted and therefore

the cumulative error analysis is not necessary. Ellis argues that his sentence is procedurally

unreasonable because the district court imposed it prior to the Supreme Court's decision in Gall v. United States, 128 S. Ct. 6

586,

597 a

(2007),

and

that

the to

court

did

not

fully

consider on each

whether

sentence

closer

the

statutory

minimums

count, which would require a variance far below the low end of the Guidelines range, was reasonable. Ellis contends that the

court abused its discretion by presuming reasonableness of the Guidelines range. A sentence is reviewed for abuse of discretion, Gall, 128 S. Ct. at 597, with the review encompassing both procedural soundness and substantive reasonableness. Id. In Gall and in

Kimbrough v. United States, 128 S. Ct. 558 (2007), the Supreme Court clarified the sentencing judge's authority to impose a sentence outside the Guidelines range "based solely on the

judge's view that the Guidelines range fails properly to reflect § 3553(a) considerations." Kimbrough, 128 S. Ct. at 575

(internal quotation and citation omitted). Ellis was sentenced before Gall and Kimbrough were

decided, so the district court did not have the benefit of those decisions. failing to Either consider treating the § the Guidelines factors as mandatory or

3553(a)

adequately

would

constitute a "significant procedural error." at 597.

Gall, 128 S. Ct.

However, in this case, after stating its belief that

the Guidelines range was too severe, the court went on to impose a sentence three range. years below in 7 the the 360-month record low end of the the

Guidelines

Nothing

indicates

that

court

believed Ellis

that claims

it

could the

not court

vary

further

downward. applied a

Although

that

erroneously

presumption of reasonableness to the Guidelines range, it varied downward and there is no indication that the court was unaware of the applicable statutory minimum sentences. court considered the § 3553(a) factors in Finally, the fashioning the

sentence.

We therefore find that Ellis has not demonstrated

procedural error. We therefore affirm the convictions and sentence. We

deny Ellis's pro se motion to file a pro se supplemental brief. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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